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Apparently Israel has been digging up Palestinian graves and taking the corpses (at least temporarily), see:

  • Reuters (end of article)
  • Telegraph (paywall, could read only first sentence - apparently Israel is trying to identify dead hostages)
  • Euro-Med-Monitor (mentioning potential Hague Conventions and Geneva Conventions violations)
  • The New Arab (mentioning possible organ theft that sounds like a conspiracy theory)
  • EuroNews (putting possible organ theft into context of fresh bodies taken from hospitals which is more plausible)

This problem is new to me and I'm trying to understand the implications on international relations and war crimes / crimes against humanity.

  1. Is this relevant for the genocide accusations, depending on how Israel does it?
  2. What kind of precautions would Israel need to take to make it legal? For example do they need to make sure that there are records to go with each corpse to make sure that they can be matched with their previous location/grave markers/identification?
  3. What about the destruction of the graveyards other than the corpses, i.e. the grave markers, works of art, infrastructure, etc.? Looking for information on destruction of grave yards quickly leads to for example this site which calls destruction of jewish graveyards cultural genocide.
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    On a related note, Israeli soldiers posing on Jewish cemeteries within Gaza showed these were kept in good condition.
    – alamar
    Jan 30 at 21:28
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    Bull dozer use is widespread in Gaza, they are the number one tool of clearing territory. Everything which can endanger Israel is being bulldozed, including the whole coast, as far as I know.
    – alamar
    Jan 30 at 21:42
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    It might be worthy to mention that Israel is doing so as part of its search mission for kidnapped corpses of Hamas victims. All bodies which turn out not to belong to Israelis are being returned to Gaza via the Red Cross.
    – Jacob3
    Jan 30 at 22:47
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    I wonder how digging up corpses would be directly relevant for any genocide accusation? Genocide is about killing living beings or not? Jan 31 at 7:11
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    The linked Telegraph article says, "The Israel Defense Forces (IDF) has admitted to digging up Palestinian graves in a Gaza cemetery. ... The IDF said its soldiers dug up graves in the cemetery to see if dead hostages were buried there. “The hostage identification process, conducted at a secure and alternative location, ensures optimal professional conditions and respect for the deceased,” it told NBC, the American broadcaster. But photographs from the graveyard showed the extensive damage caused by the exhumations. ... "
    – Lag
    Jan 31 at 15:08

4 Answers 4

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Disturbing a cemetery is not a war crime or treaty violation, in and of itself.

There are international human rights treaties applicable to armed conflict that address the destruction of tangible cultural heritage, and the international law analysis is quite complex and nuanced in those cases.

But, generally speaking, "tangible cultural heritage" refers to renowned and extraordinary "tourist worthy" sites, and not just to anything that has any cultural meaning at all. Otherwise, almost all destruction of property would constitute a war crime, and that is not what these treaty provisions were intended to mean, nor is it what they have been interpreted as applying to.

Some exceptional cemeteries may indeed by tangible cultural heritage sites. But, the mere fact that a site is a cemetery is not itself sufficient to afford it special protection under international law.

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    Doesn't IHL protect graveyards as civilian objects, assuming there's no other compelling reason to classify some specific graveyards as military objective?
    – JJJ
    Jan 31 at 11:58
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    @JJJ The linked Article 52 basically boils down to: Attacks shall be limited strictly to military objectives. But without much more context than it found in the OP, one can't know if there are military objectives or not in these operations. It basically says, don't automatically assume that a church or a school or a private house is a military target - you need more justification than that. But this is a quite low threshold that doesn't prohibit attacking or destroying such targets if you have any military justification to do so.
    – ohwilleke
    Jan 31 at 19:52
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    -1: you seem to be completely ignoring the "human remains" aspect. Jan 31 at 21:18
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    @Fizz The argument that damage to human remains constitutes injuries to civilians which one of the linked sources argues as the sole international law argument about harm to be human remains being relevant (IIRC, Ms. Dill's analysis, but I may be remembering wrong), is a real stretch. If there ever were a war crimes proceeding that legal long shot theory for small potatoes harm would be ignored in favor of much stronger arguments with more clear legal support about harm to living people and about destroying a large percentage of residences.
    – ohwilleke
    Jan 31 at 21:52
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    In your biased opinion. I mean, GC explicitly talks about it [human remains]. But like with many proportionality-related issues [even if they're called something else], interpretation of circumstances is key. My DV to your answer is that you think it's all about "cultural heritage", when the treaties clearly cover human remains, and Israel is even invoking (albeit not with explicit reference, since they're not part of AP I) the "investigative" exceptions from AP I. Jan 31 at 21:54
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It's pretty debatable and doesn't come up that often in wars, but according to one interpretation:

The [ICRC] commentary on Article 17 First Geneva Convention clarifies that respect for graves implies a prohibition on “such actions as vandalizing or removing headstones, razing or dismantling gravesites, and disinterring bodies, unless exhumation is authorized by international humanitarian law” (2016 Commentary Article 17 GV I, para 1689)

Of course, Israel claims they have an overriding reason to do so, but the ICRC (or treaties) apparently didn't consider the present circumstances, explicitly... but there's something close enough as "investigative necessity":

When does IHL authorize exhumation? Article 34 API states that exhumation is only permissible to repatriate a body (on the request of the home country or the next of kin) or as “a matter of overriding public necessity, including cases of medical and investigative necessity”. This obligation (applicable in international armed conflict and under occupation) addresses the party on whose territory the grave is. It also concerns the human remains of persons who are “not nationals of the country in which they have died.

Also, Israel is not part of AP I, but they seem to essentially invoke that idea:

Israel argues that it is exhuming bodies precisely for the purposes recognized by IHL: to investigate what happened to the hostages and to bring them home.

But one critic argues that's still not kosher, because...

Israel is disturbing the peace of bodies without then seeking to identify or repatriate them (they were home already). Israel allows some persons to lose their identity after death to be able to account for others. If those are the facts, then the practice violates a fundamental principle of IHL, one relevant to the war dead: non-discrimination. IHL demands in several places that parties to the war discharge their obligations toward the dead “without adverse distinction”. Israel’s treatment of the dead in Gaza seems to run counter to IHL’s very quest to protect the war dead regardless of who they were.

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    I could add there that in different circumstances, the US even opposed Vietnam's entry into the UN for [among other reasons] not returning the US war dead. Jan 31 at 21:40
  • +1 argued more cogently than almost any of the cited materials in the question or any of the other answers.
    – ohwilleke
    Jan 31 at 22:21
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Acccording to the New York Times:

The laws of armed conflict consider the intentional destruction of religious sites without military necessity a possible war crime.

This is confirmed by various sources, including the US Commission on International Religious Freedom and the Geneva Council for Rights and Liberties.

The NYT article also mentions that "the Israeli military did not respond to questions by The Times about its reason for razing the cemetery and whether it has taken any precautions to protect religious sites in Gaza". Given that the IDF is usually quick to communicate and justify its actions, this could mean that they had no good reason to do it.

Additionally, the vast majority of people in the world see the desecration of graves as something extremely creepy and wrong. So this is likely to contribute to lowering the support for Israel in the international opinion.

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    I would question whether a cemetery always qualifies as a "place of worship" (as one of the linked sources asserts), and likewise would dispute that a cemetery always qualifies as a "cultural heritage" site. Sometimes, it could be one of those things, but it is a stretch to apply that to all of them. I'm certain that some people could find it to be creepy. But war itself is a pretty ominous thing to start with.
    – ohwilleke
    Jan 30 at 23:39
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    @ohwilleke Given that the only thing you can do for the people kept in cementeries is praying for them, and that the main (if not the only) reason for cementeries to exist is religious belief, I would conclude that yes, they are places of worship as much as a church is. For instance, both cementeries and churches count as "consacrated land" in every Christianity variety I know of. As the OP mentions in their question, desecrating (jewish) cementeries constitutes a grave assault for them, but again, it's one rule for me and another one for my enemies.
    – Rekesoft
    Jan 31 at 7:49
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    "consecration" is kind of a legal concept -- its about land use, nothing particularly to do with sacredness. As such, consecration is enforced by civil authorities or canon law. For religions that are not associated with civil authorities or canon law, consecrating a church or cemetery just means saying "we'll use this as a church (or cemetery)". Also, praying for the dead is by no means universal in religion or in cemeteries.
    – david
    Jan 31 at 11:55
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    @Rekesoft There are plenty of non-religious cemeteries for people without religious belief. At least around here it is actually illegal to just keep someone's remains at home. Jan 31 at 13:17
  • 6
    @Rekesoft People go to cemeteries without the intention of praying for the people buried there, not everyone is religious in the first place.
    – Joe W
    Jan 31 at 13:34
3
  1. Is this relevant for the genocide accusations, depending on how Israel does it?

Yes, it is relevant - all violations of the Geneva Convention by Israel, against Palestinians, can be used as evidence to prove the genocidal intents of Netanyahu's government. Specifically, the 1949 Fourth Geneva Convention (GCIV) has a provision that prohibits the desecration of corpses:

Rule 113 Treatment of the dead. The obligation to take all possible measures to prevent the dead from being despoiled (or pillaged)

Note that Israel is one of the few countries that objects to the GCIV as Article 49 of the Fourth Geneva Convention also includes the provision:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

which Israel staunchly opposes:

“In 1976 the Israeli government maintained its attitude of non-recognition of the applicability of the Fourth 1949 Geneva Convention in the occupied territories. The ICRC, in contrast, has consistently stated its opinion that all conditions existed for the applicability of that Convention.”

(Ofcourse, transferring population, killing and / or chasing away the native population is also now internationally recognised as genocide and is precisely what Israel is being accused of for a long time).

  1. What kind of precautions would Israel need to take to make it legal? For example do they need to make sure that there are records to go with each corpse to make sure that they can be matched with their previous location/grave markers/identification?

Ideally, Israel should seek permission, and even work with the Palestine government for the exhumation of corpses and its examination. If that is not possible, it should work with international organisations who can monitor and ensure that Israel isn't wantonly desecrating or destroying the graves and dead bodies, that Israel treats the dead with the dignity they deserve and is putting them back in the grave again with all proper customs followed.

Israel does have a "weak" defense that it is trying to identify dead hostages - Hamas has publicly claimed that Israel has intentionally or unintentionally killed many hostages during its onslaught on Gaza. I say weak, because Israel has consistently prevented relief workers from doing there work, and any dead hostages could have been identified earlier itself if they had been allowed to do their job. And the more likely reason for these exhumations are to identify Hamas members so that Netanyahu can claim use it for propaganda, to blunt the claim that the death of hostages in the bombing were thoughtless and "unnecessary".

  1. What about the destruction of the graveyards other than the corpses, i.e. the grave markers, works of art, infrastructure, etc.?

If care and attention is not taken to preserve them, or not restore them on damage or destruction, these can indeed be considered as proof of cultural genocide against Palestinians.

References:

  1. Fourth Geneva Convention
  2. Question of the Observance of the Fourth Geneva Convention of 1949 in Occupied Palestinian Territory
  3. Hamas claims 50 Gaza hostages have been killed by Israeli bombing
  4. For Netanyahu’s Government, Israeli Hostages Are Just a Propaganda Tool
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    prevent the dead from being despoiled (or pillaged) => isn't this about people killed during the conflict, not about those long buried? Feb 1 at 6:44
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    Problem with invoking the Geneva Convention is that you can't apply it to only one side. Hamas routinely uses hospitals and schools for their base of operations and probably numerous other violations. While it's perhaps not the best that Israel breaks the rules when they retaliate, you can't cherry-pick GC violations to make one side look bad.
    – Beefster
    Feb 5 at 17:35

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